JUDGMENT
R.L. Anand, J.
1. Dharam Pal claims that he was born to Smt. Chalti Devi and has filed the present appeal which has been directed against the judgment and decree dated 18.8.1999 passed by the Court of learned District Judge, Sonepat who accepted the appeal of the plaintiffs- respondents Sanjeev and others by setting aside the judgment and decree dated 20.2.1999 passed by the Court of Additional Civil Judge (Senior Division), Sonepat, who dismissed the suit of the plaintiff (now respondents).
2. Some facts can be noticed in the following manner:
Sanjeev and others filed a suit for declaration that they are the owners of the land in question by efflux of time and the case set by the plaintiffs was that Dharampal defendant mortgaged land measuring 3 Bighas 15 Biswas including all rights appurtenant thereto in favour of Smt. Brahrni Devi on 13.11.1961/18.11.1961 for a consideration of Rs. 20,000/- and it was agreed upon that if Dharampal fails to get the land redeemed within 6 months, then Brahtni Devi shall have the right to get the sale deed executed in her favour. Brahmi Devi died but during her life time she executed will. On that basis, all the right of her property were given to the plaintiffs- appellants. It is on the basis of this will (Ex.P.12) mutation Nos. 4156(Ex. P.4) and 4147 (Ex.P.5) regarding mortgaged property were sanctioned in their favour on 15.9.1980. The plaintiffs further alleged that period of limitation the redeem to the land was 30 years and since it has expired so defendant Dharampal had ceased to be the owner of the land in question by efflux of time. The suit was contested by the defendant mainly on the ground that he was minor on the date of execution of the mortgage deed and moreover he never parted the possession. The defendant also denied the execution of the mortgage deed.
3. The plaintiffs filed replication in which they reiterated the contentions made in the plaint by denying those of the written statement and from the above pleadings of the parties, the learned trial Court framed the following issues:
“1) Whether the defendants mortgaged the land in dispute with the plaintiff vide registered mortgage-deed dated 18.11.1991 for Rs. 2,000 if so, to what effect? OPP. (1-A) Whether the defendant was minor at the time of mortgage-deed of the suit land dated 13.11.1961 registered on 18.11.1961 and to what effect ? OPP.
2) Whether the right of defendants to get the suit land redeemed has extinguished by lapse of time, and the plaintiff has become its owners as alleged ? OPP
3) Relief.
4. The parties led oral and documentary evidence in support of their case and vide judgment and decree dated 20.2.1999, the suit of the plaintiffs was dismissed. Aggrieved by the judgment and decree of the trial Court, the plaintiffs filed the first appeal before the Court of learned district Judge, Sonepat who, for the reasons given in paragraph 12 of the judgment decree the suit of the plaintiffs and granted a declaration as prayed for.
5. Before I deal with the submissions raised by the learned counsel for the appellant, it will be appropriate to reproduce para 12 of the judgment of the first appellate Court which is reproduced below:
“The original birth entry is in Urdu and this is the last entry in the register and is in different ink then that of other entry and this fact has been admitted by PW3 Kunwar Singh, who proved the birth certificates Ex.D1, who deposed that Ex.D.1 – copy of birth certificate was not drawn by him. He did not know Urdu. He categorically deposed that entry of the name of Dharampal is in different ink and other entries are also in different ink. He further deposed that this entry at Sr. No. 35 in the name of Dharampal is prior to his service and, thereafter, four columns are lying vacant. In other words, this is the last entry. He did not know who made this entry, appeared in the witness-box nor the person who did translation, entered in the witness-box , Kanwar Singh does not know Urdu. Moreover, this entry is in different ink and other entry is in other ink, and this is the last entry of the page. All these facts create doubts. So, finding of learned trial Court that Dharampal was minor on the date of execution of mortgage-deed, iserroneous, and cannot be believed. In other words, Dharampal was major at the time of executing the mortgage deed, which he mortgaged for a consideration of Rs. 2,000/- in favour of his Mosi (mother’s sister) Brahmi. Thereafter, he failed to get the land redeemed within a period of six months as per clause in mortgage-deed Ex.P1. The mortgage deed is dated 18.11.1961 and the suit was filed on 25.8.1992, practically after a lapse of 30 years. So, L.Rs of Brahmi i.e. present appellants have become owners in possession of the land in dispute. So, they are declared owners on the basis of this mortgage-deed, because Brahmi died leaving a will in favour of plaintiffs/appellants. So, Judgment and decree under appeal are erroneous and cannot be sustained and the same are hereby set aside. Appeal succeeds and it is accepted with costs.”
6. Learned counsel for the appellant submitted that it is a judgment of reversal and matter requires examination in order to find out whether Dharampal was minor on the date of alleged mortgage and moreover whether the mortgage deed was ever executed by Dharampal. The argument of the learned counsel for the appellant is partly correct that it is a judgment of reversal but it does not mean that the judgment of reversal always requires a scrutiny when things are apparent on the record. The case set up by the defendant before the trial Court was that on the date of mortgage he was minor. He relied that his date of birth was 17.12.1945 and per Ex.D.1 whereas the plaintiffs’ case was that the defendant was born on 11.5.1943 and in support of their contention they relied upon the school leaving certificate of the defendant in which such date of birth has been recorded. In this case, the mortgage deed was executed in the year 1961. Though the defendant has denied that it was never executed by him but he did not examine any expert in this behalf meaning thereby it was to his knowledge that he executed the mortgage deed. The present suit was filed by the plaintiffs-respondents somewhere in the year 1992. For a period of more than 30 years, the defendant never issued a notice to the plaintiffs alleging that he was minor on the date of execution of the mortgage deed. The valid and cogent reasons have been given in disbelieving the birth entry Ex.D.1. If the date of birth of the defendant is taken as 11.5.1943, then it has to be inferred that the defendant was major on the date of the mortgage. Admittedly, the mortgage deed was not redeemed within 30 years. In these circumstances, a declaration could be granted in favour of the plaintiff-respondents.
7. Another argument raised by the learned counsel for the appellant was that it was a suit for mere declaration and as such it is not legally maintainable. The argument is erroneous on the face of it because the mortgage was in possession of the land and the same always remained in his possession. In these circumstances,the plaintiff-respondents were only called upon to seek declaration when a cloud had come over their title.
8. There is no merit in this appeal. Dismissed.